Friday, April 12, 2013

Law's History: An Overview

Thanks to Dan Ernst for inviting me to contribute posts to the Legal History Blog about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History. In this first post, I will highlight its contents and major conclusions. Later posts will address various historical and historiographical issues the book raises and will respond to comments readers might make.

Law’s History examines the central role of history in late nineteenth-century American legal thought. It argues that a distinctive “Historical School of American Jurisprudence” dominated American legal scholarship from the 1870s until superseded by the sociological jurisprudence promoted by Roscoe Pound in the decade before World War I. The American scholars who are the primary focus of the book include Henry Adams, James Barr Ames, Melville M. Bigelow, James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, Oliver Wendell Holmes, Jr., John Norton Pomeroy, Roscoe Pound, James Bradley Thayer, Christopher G. Tiedeman, and Francis Wharton.

I conclude that the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic during the nineteenth century. They viewed their historical study of law as an inductive science that rejected the prior speculation and “mere theory” of natural law and analytic jurisprudence. Making legal scholarship an inductive science, they believed, justified the inclusion of law schools in the emerging American research universities. Among these scholars, Adams, Bigelow, Holmes, Thayer, and Ames wrote internationally respected original works on the history of English law. Some American law professors also wrote about the history of American law, including constitutional law. I stress that they were much more sophisticated historians than portrayed by the condescending and cursory treatment of them by many subsequent American legal historians.

In developing sociological jurisprudence in the decade before World War I, Roscoe Pound created the characterization of his nineteenth-century predecessors that largely persists to the present. Borrowing substantially from Rudolph von Jhering’s critique of historical jurisprudence in Germany, Pound claimed that the late nineteenth-century American legal scholars were mechanical deductive formalists committed to individualistic principles that impeded needed social reform in the United States. Based on my research, I conclude that this characterization is largely incorrect, that the members of the “Historical School of American Jurisprudence” overwhelmingly rejected deductive formalism and often supported moderate legal reform.

After an introduction and a chapter presenting a biographical overview of the leading American legal scholars in the historical school, the book is divided into three parts. Part I, “The European Background,” discusses the general turn to history in the nineteenth century and the work of the German and English legal scholars who most influenced the Americans, especially Savigny, Sohm, Brunner, Jhering, and Maine. Part II, “The Historical Turn in American Legal Scholarship,” contains separate chapters on each of the major American legal historians; a chapter on “The History of American Constitutional Law,” focusing on Thayer, Cooley, and Tiedeman; and a final chapter, “The Historical School of American Jurisprudence,” that highlights its major characteristics. Part III contains chapters on Maitland, Pound, and twentieth-century interpretations of late nineteenth-century legal thought.